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The Opinion handed down on the 17th day of April, 2009, is as follows:
BY VICTORY, J.:
2005-B -1303 IN RE: IVAN DAVID WARNER AND STEVEN JOSEPH RANDO
05-B-1303
VICTORY, J.*
respondents Ivan David Warner and Steven Joseph Rando had breached the
proceeding by La. S.Ct. Rule XIX, §16. In defense, the respondents argued that the
Amendment of the United States Constitution. For the reasons which follow, we
find that the confidentiality rule does indeed violate the First Amendment, as it
attorney disciplinary proceeding must fall. Given our findings, the charges against
who had been involved in a motor vehicle accident while in the course and scope
of his employment with a trucking company. Warner initiated both the client’s
claim for workers’ compensation benefits, as well as the client’s suit for damages
against the third-party tortfeasor, i.e., the owner of the other vehicle involved in the
*
Calogero, C.J., retired, recused. Chief Justice Calogero recused himself after oral
argument, and he has not participated in the deliberation of this case.
1
accident. Attorney S was counsel for the employer trucking company. In 1998,
before either case was resolved, the client discharged Warner and subsequently
hired Attorney C and his associate, Attorney B, to manage the ongoing litigation.1
The third-party liability case was tried in federal court and resulted in a verdict for
the defense in early 2000. The workers’ compensation case was settled in
September 1999. Warner’s claims for attorneys fees and costs were not protected
In June of 2000, Warner filed suit in Orleans Parish Civil District Court
against Attorney C and Attorney S, asserting that the attorneys’ failure to honor his
claims for fees and costs in the settlement of the workers’ compensation case was a
negligence, fraud, and intentional acts, including theft. This suit was later amended
represent him in this civil suit; Warner was not attorney of record and made no
appearance as counsel in this matter. The defendants filed exceptions and other
In February 2002, while the civil suit was still pending, Warner filed
lawsuit. Rando was not counsel for Warner in connection with the disciplinary
complaints, nor did he otherwise participate in the filing of the complaints. The
1
The Office of Disciplinary Counsel (“ODC”) has suggested that this Court refer to the
three lawyers against whom Warner filed a complaint as Attorney B, Attorney C, and
Attorney S. This Court will honor the ODC’s request in this opinion.
2
Presumably Mr. Warner was referring to a lawyer’s duty to protect the property of a
third party which is in the lawyer’s possession. See Rule 1.15 of the Rules of Professional
Conduct.
2
ODC notified Attorney B, Attorney C, and Attorney S of the filing of the
complaints by letters dated March 25, 2002. Copies of these letters were sent to
Warner on the same day. Each of the letters indicated in closing that “This matter
is confidential at this stage except for necessary disclosures in the course of our
were forwarded to Warner. Nothing in the May mailing to Warner indicated that
On May 10, 2002, Rando, on behalf of Warner, filed a partial motion for
summary judgment in the civil case. Attached to the motion as exhibits were the
memorandum in support of the motion for summary judgment. The trial court
subsequently denied the motion for summary judgment. Seven days later, Attorney
B filed a complaint with the ODC. Attorney B alleged that Warner and Rando had
the responses that Attorneys B, C, and S had tendered to the ODC as exhibits in
support of Warner’s motion for summary judgment. Attorney B pointed out that
Both the civil suit and the attorney disciplinary investigation initiated by
Warner were resolved by 2003. In April 2002, the ODC dismissed Warner’s
complaints against Attorney B, Attorney C, and Attorney S. Warner did not appeal
the dismissal of the complaints. On November 14, 2003, the parties to the civil suit
3
informed the court that they had reached a confidential settlement, and the court, in
accordance with a joint motion from all parties, sealed the record of the civil suit.3
DISCIPLINARY PROCEEDINGS
Based upon the complaint filed by Attorney B, the ODC filed formal
charges against respondents, alleging that “[t]he combined actions of both Ivan
David Warner and Steven Joseph Rando breeched [sic] the La. S.Ct. Rule XIX
investigation by [the] ODC.” The ODC further alleged that respondent’s conduct
constituted a violation of Rules 1.2 (a) & (d); 1.16 (a) (1); 2.1; 3.1; 3.4 (c); 4.4; and
The Hearing Committee noted that “[u]nder a plain reading of the many
rules cited by the ODC” in the formal charges, “nothing really fits this situation to
a ‘T.’” However, the committee found the respondents actions were knowing,
intentional, and had caused actual injury and accordingly recommended discipline.
The Disciplinary Board also found both respondents guilty of misconduct. The
Board found that Warner had violated Rule XIX, §16 (A) and (I) and that Rando
had violated Rule XIX, § 16 (A). The Board held that Rule XIX, §16 (G) was
3
The civil suit record was sealed after the filing of formal charges in the instant matter
and at the urging of counsel for Rando in these proceedings. However, by the time the
record was sealed in November of 2003, the complaints against Attorney B, Attorney C,
and Attorney S had been in the public domain for eighteen months.
4
In their findings, the Disciplinary Board expressed the view that the different
subsections of La. S.Ct. Rule XIX, § 16 imposed different obligations, and therefore,
rather than charging both respondents with violating La. S.Ct. Rule XIX, § 16 A, G, and I
corporately, as the ODC suggested, the Board reviewed each respondent’s actions in light
of the obligations imposed by each section. According to the Board, Rule XIX, § 16(A)
creates a professional obligation, binding upon all attorneys, to maintain the
confidentiality of bar complaints unless or until formal charges are filed. Rule XIX, § 16
(I) requires all “participants” in the proceeding to abide by the confidentiality mandated
in § 16(A). Thus, under this interpretation, the Board found that Warner, as both a
participant and an attorney, had violated his obligations under Rule XIX, § 16(A) and
(I), while Rando, whom the Board judged not to be a “participant,” had only violated the
obligations imposed under Rule XIX, § 16(A). The Board explained that Rule XIX, §
16(G), which addresses the release of information to a “requesting agency” about an
4
Board questioned the constitutionality of the confidentiality rule,5 although this
issue had not been raised by the parties at either the hearing or the Board
proceedings.
the Disciplinary Board's recommendation with this Court. In their objections, the
respondents, echoing the substance of the aforementioned dissent, raised for the
first time the argument that the confidentiality provided by La. S.Ct. Rule XIX, §
the confidentiality rule violated their rights under the First Amendment and the
Constitution.
We first heard oral arguments in this case in January 2006. At that time,
the Court questioned counsel as to whether the constitutional issue was properly
before the Court given the fact that respondents had failed to raise any
Warner, Rando, and the ODC addressing two issues: (1) whether the question of
the constitutionality of Supreme Court Rule XIX, § 16 was properly before the
Court, and (2) what procedure this Court should employ to address the
constitutional question.
attorney without notice to that attorney, was inapplicable to the matter at hand.
5
The dissent adopted the reasoning of the Tennessee Supreme Court as expressed in the
case of Doe v. Doe, 127 S.W.3d 728 (Tenn. 2004). In Doe v. Doe, the court held that
Tenn. Sup.Ct. R. 9, § 25, which the dissent argued was essentially similar to La. S.Ct.
Rule XIX, § 16(A), violated the tenants of the First Amendment of the United States
Constitution. 127 S.W.3d at 736-737.
5
question. To that end, given the unique facts and circumstances of this case, the
absence of a developed evidentiary record on the issue, and the novel nature of the
record concerning the issue of the constitutionality of Supreme Court Rule XIX, §
16.” In Re: Ivan David Warner and Steven Joseph Rando, 05-1303 (La.
transcript of this hearing throughout the course of our opinion. During this
proceeding, the ODC6 called several witnesses to testify: Joseph L. Shea, Jr., a
Shreveport attorney who has served at the Louisiana Attorney Disciplinary Board
Marta-Ann Schnabel, a New Orleans attorney who was then serving as the
matters and has served as an adjunct professor at Tulane University Law School in
disciplinary matters. Each witness testified that the confidentiality imposed by the
rule serves several important interests. Respondents called only one witness, Steve
6
In the present matter, the ODC represents the interests of this Court, which is the state
entity whose action is under review. Accordingly, the interests asserted by the ODC are
occasionally referred to as state interests. As a courtesy, notice was sent to the Louisiana
Attorney General regarding the constitutional claim addressed herein, however, no brief
was received from that office regarding this matter.
7
At the time of the hearing, Mr. Stanley was also serving as the Chair of the LSBA
Rule’s Committee. This committee was formerly known as the Lawyer’s Conduct
Committee.
6
Corbally, a former investigator for the bar disciplinary system in Massachusetts.
and the Board of Bar Overseers. Mr. Corbally testified that although confidentiality
very well.
Court.8 After a review of these findings, the Court heard a second oral argument
solely on the constitutional issue on April 8, 2008. Thereafter we took the case
under advisement.
The ODC’s charge that Warner and Rando violated several Rules of
Professional Conduct is based upon Warner’s and Rando’s alleged breach of the
La. S.Ct. Rule XIX, § 16(A) and (I) (“the confidentiality rule”).9 Thus, if the
charge that Warner and Rando violated several Rules of Professional Conduct must
likewise fall.
8
Judge Ciaccio submitted a four page report briefly summarizing the testimony of each
of the witnesses that testified at the hearing. He also tendered several factual findings.
This Court did not request, and Judge Ciaccio did not submit, a legal opinion regarding
the constitutional issues in this case.
9
La. S.Ct. Rule XIX, § 16 contains several subsections. The formal charges filed by the
ODC and the findings of the Hearing Committee and the Disciplinary Board specifically
address Rule XIX, § 16(A), (G), and (I). We agree with the Disciplinary Board’s finding
that Rule XIX, § 16(G), which addresses the release of information to a “requesting
agency” about an attorney without notice to that attorney, is inapplicable in the matter at
hand. Thus, we direct our analysis only to Rule XIX, § 16(A) and (I). As explained in
this opinion, though we address two separate provisions, these separate provisions create
one confidentiality regime. Accordingly, these provisions are alternatively referred to
herein as “the confidentiality rule.”
7
Warner and Rando argue that the confidentiality provided by La. S.Ct. Rule
XIX, § 16(A) and (I) violates the First Amendment of the United States
and that the rule acts as an impermissible prior restraint of speech. Respondents
direct this Court’s attention to the decisions of four other courts which have
Sup. Ct., 883 A.2d 369 (N.J. 2005); Doe v. Doe, 127 S.W.3d 728 (Tenn. 2004);
Petition of Brooks, 678 A.2d 140 (N.H. 1996); Doe v. Sup. Ct., 734 F.Supp. 981
(S.D. Fla. 1990).10 Each of these four courts held that the confidentiality rules in
question violated the tenants of the First Amendment. In addition to their First
Amendment claims, the respondents also argue that the confidentiality provisions
violate the Equal Protection Clause of the Fourteenth Amendment. U.S. Const.
amend. XIV.
For the following reasons, we find that the confidentiality provisions of La.
S.Ct. Rule XIX, § 16(A) and (I) do indeed violate the First Amendment of the
restriction of speech. Thus, the confidentiality rule imposed by La. S.Ct. Rule XIX,
§ 16(A) and (I) must fall. Accordingly, we order that all charges against the
10
In addition to these four courts, we also note that the Montana Supreme Court has
considered a claim that the confidentiality requirements of that state’s attorney discipline
system violate an individual’s right to free speech. Goldstein v. The Commission on
Practice, 995 P.2d 923, 929-930 (Mont. 2000). In Goldstein, the petitioners averred that
the confidentiality rule violated their rights to free speech under the Montana
Constitution. Id., at 930. In support of their argument, the petitioners cited Doe v. Sup.
Ct., 734 F.Supp. 981 (S.D. Fla. 1990), in which the federal district court held that
Florida’s confidentiality rule for attorney disciplinary cases, as applied to a complainant,
violated the First Amendment of the United States Constitution. Unlike the four courts
cited above, the Montana Supreme Court did not tender an in-depth analysis of the free
speech issue. In Goldstein, the court simply distinguished the case before it from the
decision in Doe v. Sup. Ct., 734 F.Supp. 981 (S.D. Fla. 1990), and thereafter dismissed
the petitioners’ arguments that the confidentiality rule violated the petitioners’ rights to
free speech. Goldstein, 995 P.2d at 929-930.
8
respondents be dismissed. Our resolution of the matter on these grounds renders a
As we begin our analysis, we will first briefly review the general basis for
the application of First Amendment principles to the case at hand. We will then
proceed to define the proper scope and application of the confidentiality rule.
“Congress shall make no law . . . abridging the freedom of speech.” U.S. Const.
amend. I. In a series of cases, the Supreme Court has held, “that the liberty of
speech and of the press which the First Amendment guarantees against
Due Process Clause of the Fourteenth Amendment from invasion by state action.”
First Nat. Bank of Boston v. Bellotti, 435 U.S. 765, 779, 98 S.Ct. 1407, 1417, 55
L.Ed.2d 707 (1978). The Louisiana Supreme Court is a state entity.11 Acting under
its constitutional and inherent authority, the Court has adopted La. S.Ct. Rule XIX,
§ 16(A) and (I), provisions which, on their face, abridge speech regarding attorney
disciplinary proceedings. La. S.Ct. Rule XIX, § 1 (“Under the authority of Article
V, Section 5(A) and (B) of the Louisiana Constitution of 1974 and the inherent
power of this court . . . the following Rules for Lawyer Disciplinary Enforcement
be and are hereby adopted.”). Thus the protections of the First Amendment are
11
LSA-Const. art. 2, § 1 establishes that the powers of the government of the state of
Louisiana are divided into three branches: legislative, executive, and judicial.
LSA-Const. art. 5, § 1 states that the judicial power of the state is vested in a supreme
court, courts of appeal, district courts, and other courts authorized by this article.
9
II. La. S.Ct. Rule XIX, § 16(A) and (I)
The confidentiality provisions implicated in the instant case are La. S.Ct.
Rule XIX, § 16(A) and (I). A proper understanding of the history, scope, and
A. Confidentiality.
Prior to the filing and service of formal charges in a discipline matter, the
proceeding is confidential, except that the pendency, subject matter, and
status of an investigation may be disclosed by disciplinary counsel if:
***
I. Duty of Participants.
___ So.2d ___, in February of 1990, this Court became the first state high court to
adopt the American Bar Association’s (“ABA”) 1989 Model Rules for Lawyer
12
La. S.Ct. Rule XIX, § 16 is reproduced in its entirety in the appendix to this opinion.
The pertinent portions of La. S.Ct. Rule XIX, § 16(A) and (I), reproduced above, have
remained unchanged since the Court adopted these provisions in 1990. This was the
operative text at the time of the alleged misconduct in the instant case.
10
Disciplinary Enforcement (“MRLDE”).13 The text of La. S.Ct. Rule XIX, § 16(A)
and (I) was adopted from the 1989 version of ABA MRLDE 16.14 See 114 No.2
The approval of the 1989 MRLDE by the ABA House of Delegates was the
committees.15 In order to keep the MRLDE current and useful, the ABA has
continued to study disciplinary systems and has amended the model rules several
times.16
We note with interest that in 1993 the ABA amended the source provisions
for La. S.Ct. Rule XIX, § 16(A) and (I). 118 No.2 Annu. Rep. ABA 180-182, 226-
227 (1993). The amended provisions impose confidentiality only upon the
13
See also The ABA Standing Comm. on Professional Discipline, Report On The
Louisiana Lawyer Regulation System 5 (August 1996) (copy on file with the Office of
the Judicial Administrator, Louisiana Supreme Court).
14
The paragraphs currently included after Rule XIX, § 16(A)(4) are not taken from the
1989 ABA MRLDE. 114 No.2 Annu. Rep. ABA 334 (1989). We also note that this Court
removed some language from Model Rule 16(A)(4) of the 1989 ABA MRLDE before we
adopted this provision as our own. As originally adopted by the ABA, the 1989 version
of Model Rule 16(A)(4) stated:
114 No.2 Annu. Rep. ABA 334 (1989). The italicized text in the above quoted provision
was removed before we incorporated this provision into our rules. Beyond these minor
alterations, the text in La. S.Ct. Rule XIX, § 16(A) and (I) was taken directly from Model
Rule 16 of the 1989 ABA MRLDE.
15
The ABA, Ctr. for Professional Responsibility, Model Rules for Lawyer Disciplinary
Enforcement xi (2007) (providing a chronological list of various ABA committees and
publications which have addressed the standards of lawyer regulation); The ABA Special
Comm. on the Evaluation of Disciplinary Enforcement, Problems and Recommendations
in Disciplinary Enforcement v (1970) (preliminary draft) (stating that the special
committee on the evaluation of disciplinary enforcement was created in 1967).
The ABA, Ctr. for Professional Responsibility, Model Rules for Lawyer Disciplinary
16
Enforcement xi (2007).
11
disciplinary proceedings, imposed by the 1989 model rule and at issue in this case,
These changes were made after the ABA House of Delegates considered a
proceedings.20 Specifically, the report noted that several courts had held that
17
After the 1993 amendments to Model Rule 16 of the 1989 ABA MRLDE, Model Rule
16(A) was redesignated 16(B), and Model Rule 16(I) was redesignated 16(J). 118 No.2
Annu. Rep. ABA 180-182, 226-227 (1993). The new Model Rule 16(B) was revised to
state that, “Prior to the filing and service of formal charges in a discipline matter, the
proceeding is confidential within the agency . . . ” (emphasis added) Id., at 226. The new
Model Rule 16(J) as amended states:
12
confidentiality rules, as applied in disciplinary proceedings, violated the First
decision in Doe v. Sup.Ct., where the United States District Court held that
proceedings, violated the First Amendment. 734 F.Supp. 981. After discussing this
case law, the Commission concluded that the ABA Delegates should take action to
While the ABA House of Delegates did not follow all of the McKay
provisions for La. S.Ct. Rule XIX, § 16(A) and (I) indicates that they were
incorporate the changes the ABA instituted to the confidentiality rule in 1993, and
thus we must now address the First Amendment challenge the ABA sought to
avoid.
disciplinary matter be open to the public only after a finding of probable cause. The
ABA, Ctr. For Professional Responsibility, Lawyer Regulation for a New Century:
Report of the Commission on Evaluation of Disciplinary Enforcement 33-39 (1992).
While the ABA Delegates clearly rejected the McKay Commission’s suggestion to make
attorney disciplinary proceedings fully public, the 1993 amendments we discuss herein
suggest that the Delegates were influenced by the McKay Commission’s comments
regarding the constitutionality of confidentiality provisions as applied in disciplinary
proceedings.
21
As noted above, in its discussion of confidentiality rules, the McKay Commission
primarily focused on the holding in Doe v. Sup. Ct., 734 F.Supp. 981 (finding that the
confidentiality rule governing Florida’s attorney disciplinary proceedings, as applied to
complainants, violated the First Amendment). The Commission then cited and explained,
via parenthetical, the holdings in several other cases including: Landmark
Communications, Inc. v. Virginia, 435 U.S 829, 98 S.Ct. 1535, 56 L.Ed.2d 1 (1978)
(finding that a Virginia statute which threatened individuals with criminal sanctions for
divulging information regarding judicial misconduct proceedings violated the tenants of
the First Amendment as applied to a third party to the proceedings), and Baugh v.
Judicial Inquiry and Review Comm’n, 907 F.2d 440 (4th Cir. 1990) (finding the
confidentiality provision governing proceedings before the judicial discipline
commission was not a valid time, place, and manner restriction but rather a content based
restriction subject to strict scrutiny). 117 No.1 Annu. Rep. ABA 552 (1992); The ABA,
Ctr. For Professional Responsibility, Lawyer Regulation for a New Century: Report of
the Commission on Evaluation of Disciplinary Enforcement 37 (1992).
13
B. The Scope and Application of La. S.Ct. Rule XIX, § 16(A) and (I)
(1) Rule XIX, § 16(A) and (I) Create One Confidentiality Regime
to the class of speech that is restricted under these provisions, there is disagreement
in the record on two key questions: (1) Do La. S.Ct. Rule XIX, § 16(A) and (I)
confidentiality under either the one rule or two rules? We will begin our analysis of
find that La. S.Ct. Rule XIX, § 16(A) and (I) should be viewed as establishing one
confidentiality rule for attorney disciplinary proceedings, not two. Rule XIX, §
16(A) does not act as an independent rule23 but rather establishes part of a
confidential as it regards attorney disciplinary matters and notes that the ODC may
22
As we previously noted, the Disciplinary Board adopted the view that La. S.Ct. Rule
XIX, § 16(A) creates a professional obligation, binding upon all attorneys, whereas La.
S.Ct. Rule XIX, § 16(I) requires all “participants” in the disciplinary proceeding to abide
by the confidentiality mandated in § 16(A). The ODC has taken the position that Rule
XIX, § 16(A) and (I) should be read together, not separately. According to the ODC,
section (A) establishes the confidentiality of an investigation in general, as well as a few
enumerated exceptions. Section (I) binds all lawyer participants to conduct themselves so
as to maintain the principle established by section (A).
23
Compare the general phrasing of § 16(A) with § 16(D), § 16(E), § 16(F), § 16(G), §
16(H), § 16(I), and § 16(J), which address themselves specifically to the disciplinary
agency as a whole, a specific component of the disciplinary agency, the LSBA or one of
is committees, other authorized agencies, and/or a class or several classes of individuals.
24
Our finding on this point is supported by our previous discussion on the origins of the
two provisions here at issue. We note that when the ABA moved to amend the
confidentiality provisions they amended the source rules for La. S.Ct. Rule XIX, §16(A)
and (I) simultaneously and in a similar fashion, clearly indicating that the two provisions
act jointly to impose confidentiality. 118 No.2 Annu. Rep. ABA 180-182, 226-227
(1993).
14
any one of four exceptions applies. By contrast, Rule XIX, § 16(B) defines what
applied by several other subsections in § 16. See Rule XIX, § 16(E), § 16(F), and §
this rule.”25 Having clarified the rule in question, we now examine to whom it is
addressed.
proceeding is simply one who “takes part” in the disciplinary proceeding. The New
proceedings, the Supreme Court has observed that the term “participants” includes
“[a]t least” two categories of individuals, the investigatory board members along
with the staff employees of the investigatory agency and the “witnesses or putative
Communications, Inc. v. Virginia, 435 U.S 829, 838 n.10, 98 S.Ct. 1535, 1541, 56
25
In this opinion, we only address the constitutionality of the confidentiality requirement
imposed upon participants in attorney disciplinary proceedings under a joint reading of
La. S.Ct. Rule XIX, § 16(A) and (I). We do not address the various other applications of
the nonpublic/public classification scheme created by § 16(A) and § 16(B). Neither do
we address the various applications of the nonpublic/public classification scheme created
by § 16(C) for “Proceedings Alleging Disability.”
15
L.Ed.2d 1 (1978). We believe this observation also holds true in the context of an
attorney disciplinary proceeding. Furthermore, all four courts that have completed
attorney discipline system have found that the term “participants” as used in these
rules also includes the complainant. See Petition of Brooks, 678 A.2d 140; R.M. v.
Sup. Ct., 883 A.2d 369; Doe v. Doe, 127 S.W.3d at 730 n.1; Doe v. Sup. Ct., 734
F.Supp. 981. We agree with the findings of our fellow courts on this point.26
Thus, we find that the phrase “participants in a proceeding under these rules,” as
used in La. S.Ct. Rule XIX, § 16(I), when combined with § 16(A), must reasonably
including the employees, volunteers, and appointees that staff all of its various
subunits such as the Board itself, the Hearing Committees, and the ODC;28
26
In our current attorney disciplinary system the complainant initiates the ODC’s
investigation of alleged attorney misconduct. Rule XIX § 11(A). The complainant also
must be notified of the disposition of a matter following the investigation and has the
right to appeal a decision by the ODC to dismiss a complaint. Rule XIX, § 11(B)(3).
Furthermore, the record of the instant matter seems to indicate that the complainant, at
least in some cases, is intimately involved with the investigation of a complaint. For
instance, in this case the ODC sent a copy of the complaints directly to the respondent
attorneys for comment and response. Then the ODC sent the complainant copies of the
respondents’ replies to the complaints, presumably, in part, to elicit a potential rebuttal
and to further the investigation.
27
Cf. Briscoe v. LaHue, 460 U.S. 325, 334-335, 103 S.Ct. 1108, 1115, 75 L.Ed.2d 96
(1983) (citation omitted) (observing that counsel and witnesses are “participants” in the
judicial process).
28
While its various components perform different functions, the Attorney Disciplinary
Board is a single agency. La. S.Ct. Rule XIX, § 2(A). Thus, when one agency component
is participating in a particular disciplinary proceeding, the entire disciplinary agency is a
participant in that disciplinary matter.
16
witnesses; complainants; respondents; and finally counsel hired by any of these
proceedings.29 The witnesses testifying on behalf of the ODC at the hearing before
the commissioner recognized that, on its face, the rule applies to these individuals
At this point in our analysis it seems appropriate to address one of the more
agency argues that, in the course of our constitutional review, we should judge the
rule as if it only applies to attorneys. The ODC cites no authority in support of this
argument. Instead, the ODC first observes that Rule XIX does not appear to
prescribe a penalty for either a lawyer or nonlawyer who chooses to violate the
29
We cannot endorse the ODC’s argument that an attorney like Mr. Rando, who
represents a complainant or respondent in a related civil suit but has played no role
whatsoever in the attorney disciplinary proceeding, qualifies as a participant in the
attorney disciplinary proceeding under Rule XIX, § 16(I). This is not in keeping with a
plain reading of the provision. However, even though we find that Mr. Rando was not a
participant under Rule XIX, § 16(I), he is not wholly vindicated in the present matter. We
note that Mr. Rando has also been charged with violating Rule 8.4(a) of the Rules of
Professional Conduct, which forbids an attorney from assisting or inducing another
attorney, here Mr. Warner, to engage in misconduct. Accordingly, our resolution of the
constitutional issue at hand is still essential to the disposition of the charges bearing upon
both attorneys.
30
At the hearing before the commissioner, three of the witnesses called by the ODC
testified on this point. Each agreed that the confidentiality rule created by La. S.Ct. Rule
XIX, §16(A) and (I), on its face, applies to both nonlawyers and lawyers. Mr. Shea
testified, “I think everybody who participates in the proceeding, that is to be maintained
as confidential under Section 16, everybody who participates in my view is subject to
[the confidentiality] Rule.” Mr. Shea was then asked whether it was his opinion that
nonlawyers who are participating in the process as complainants are bound by the
confidentiality rule. Mr. Shea replied in the affirmative. Mr. Stanley testified that the
confidentiality rule, “applies to all participants in the process, which would include
complaining parties who are laymen . . . ” When asked whether the confidentiality rule
applied to all participants, including nonlawyers, Mr. Plattsmier replied, “Yes.
Absolutely.” We also note that counsel for the ODC, Mr. Ours, emphasized at one point
in the hearing that the ODC had not taken the position that the confidentiality rule did not
apply to nonlawyers.
17
confidentiality rule. The agency then argues that while attorneys may potentially be
the confidentiality rule. In particular, the ODC emphasizes that Rule XIX does not
counsel further suggests that for several reasons we would be unable, under our
inherent powers, to consider a rule for constructive contempt filed directly with
The ODC then concludes that since the confidentiality rule cannot be enforced as
speech of nonlawyers.
against nonlawyers, counsel suggests that a plain reading of La. S.Ct. Rule XIX, §
commissioner reveals that the ODC has reasonably interpreted the plain language
of the confidentiality rule to not only authorize, but, in fact, to require the agency
31
During opening statements at the hearing before the commissioner, disciplinary counsel
stated:
[The confidentiality rule] affects actually less than half [of one] percent of
the population as to its enforceability. The only enforceable aspect of the
Rule is against lawyers. There’s no vehicle for enforcing this Rule . . .
against a nonlawyer . . . We can encourage them, as indeed the Tennessee
case suggested you do, encourage them to maintain the confidentiality.
But we can’t enforce it.
32
The testimony given by Mr. Shea and Mr. Plattsmier at the hearing before the
commissioner confirms that the leadership of the ODC has reasonably interpreted the
confidentiality rule to require all participants in the disciplinary process, both nonlawyers
and lawyers, to abide by the confidentiality rule. The testimony also reveals that the ODC
has acted accordingly, establishing a series of procedures designed to remind all
participants that the rule requires them to maintain the confidentiality of the proceedings.
18
Citing the Tennessee Supreme Court’s decision in Doe v. Doe, the ODC asserts
under the First Amendment and suggests that this encouragement bears no
As we begin to address these arguments, we first note that the ODC’s claims
regarding contempt stand on tenuous grounds. The ODC suggests that the absence
of a contempt provision in Rule XIX for a breach of the confidentiality rule bears
preserves this Court’s authority to use its inherent powers of contempt to enforce
These rules shall not be construed to deny to any court the powers
necessary to maintain control over its proceedings.
The legislative history of this provision reveals that the “powers necessary” include
the power of contempt. As we have explained, the current disciplinary rules were
33
In Doe v. Doe, the Tennessee Supreme Court stated that:
127 S.W.3d at 735. These comments were made as the court considered whether
imposing mandatory confidentiality upon a witness or complainant was necessary to
protect the anonymity of those individuals. The court found that it was not. The court
agreed with the cited authorities, that if a participant wanted to remain anonymous they
could exercise their own free will and choose not to speak about their involvement with
the disciplinary process.
The encouragement referenced by the Doe v. Doe court, and in the cited
decisions, is clearly an invitation to participants in the proceeding to exercise their free
will. That is, to determine, based on their own interests, whether or not they wish to
maintain silence about their involvement with the disciplinary process in an attempt to
avoid unwanted attention. This case law offers no support to the arguments asserted here
by the ODC.
As we explain in this opinion, our confidentiality rule, on its face, requires
participants to maintain confidentiality. Our rule does not invite participants to decide for
themselves whether they wish to maintain confidentiality. Furthermore, the procedures
adopted by the ODC to “encourage” participants in our disciplinary system to maintain
confidentiality do not encourage participants to exercise their own free will. In
accordance with the plain meaning of the confidentiality rule, the ODC informs all
participants, both lawyers and nonlawyers, that they are required to maintain
confidentiality, whether they desire to maintain silence or not.
19
adopted from the 1989 ABA MRLDE. The 1989 MRLDE are the codified version
disciplinary standards. The wording used in La. S.Ct. Rule XIX, § 6(D) was
adopted from Model Rule 6(D) of the 1989 MRLDE. Model Rule 6(D) evolved
from Rule 1(b) of the ABA Suggested Guidelines for Rules of Disciplinary
1977). The other arguments asserted by the ODC in regard to contempt are equally
troubled. The ODC has urged that we could not consider a rule for constructive
contempt filed directly with this Court as to a nonlawyer participant who has
breached confidentiality because the legislature has provided no venue35 for such a
claim and there is no jurisdiction. The ODC also avers that an individual found
guilty of contempt has, under the state constitution, a guaranteed right to appeal.
As there is no appeal from this Court within the state judicial system, the ODC
34
The ABA, Ctr. for Professional Responsibility, Model Rules for Lawyer Disciplinary
Enforcement xi (2007) (providing a chronological list of key publications developed by
the ABA regarding Lawyer Disciplinary Enforcement).
35
See 17 C.J.S., Contempt § 69, 130-132 (1999) (“Statutes or constitutional provisions
relating to the venue of suits generally are inapplicable to civil or criminal contempt
proceedings, since it is the court contemned which must try the contempt.”); Doe v.
Board of Professional Responsibility, 104 S.W.3d 465, 474 (Tenn. 2003) (“As a general
rule, the power to punish for contempt is reserved to the court against which the
contempt is committed, i.e. the court whose order is disobeyed.”) (internal quotations and
citations omitted).
36
The ODC does not cite a specific state constitutional provision. However, we presume
the ODC is referring to La. Const. art. I, § 19, which, in pertinent part, states:
20
note that the ODC has cited no specific law in support of these claims. In fact,
these arguments are in obvious conflict with several constitutional and statutory
authorities. See LSA-Const. art. 5, § 5(B) (establishing that this Court has
Proc. art. 191 (“A court possesses inherently all of the power necessary for the
exercise of its jurisdiction even though not granted expressly by law”); La. Code
court”); La. Code Civ. Proc. art. 225 (outlining the procedure by which a court of
appeal may find an individual in constructive contempt); La. R.S. 13:4611 (which
specifically provides that the supreme court may punish a person adjudged guilty
Court addressed arguments similar to those presented here by the ODC and held
an attorney disciplinary proceeding via a charge of contempt filed directly with that
court. Doe v. Board of Professional Responsibility, 104 S.W.3d 465 (Tenn. 2003).
However, given our findings below, we need not proceed beyond these initial
Id. The term used by the article “is ‘review’ - a generic term - and not necessarily an
‘appeal’ as the term of art is used in Article V, § 5.” Lee Hargrave, The Declaration of
Rights of the Louisiana Constitution of 1974, 35 La.L.Rev. 1, 62 (1974-1975). We have
never held that this provision bars this Court from punishing an individual for contempt
of court. See State v. Casey, 99-0023 (La. 2/11/00), 775 So.2d 1043 (an example of the
implementation of this Court’s inherent power to hold an individual in contempt for
failing to respond to an order to comply with the Rules of this Court).
37
Our discussion on this matter should not be construed as an expression of preference
for contempt proceedings. In recent years, we have rarely exercised our contempt
powers.
21
analyze the constitutionality of the confidentiality rule in light of its effects on both
nonlawyers and lawyers. First, we note that the Supreme Court has indicated that a
scales in the context of a First Amendment analysis. See Board of Airport Com’rs
of City of Los Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574-577, 107 S.Ct.
2568, 2572-2573, 96 L.Ed.2d 500 (1987); Talley v. California, 362 U.S. 60, 63-64,
80 S.Ct. 536, 538, 4 L.Ed.2d 559 (1960).38 Our confidentiality rule, on its face,
nonlawyer participant reading our rule would inevitably conclude that he or she is
disciplinary process is confronted with the plain terms of the confidentiality rule,
its strict command that he or she should maintain silence carries with it an implicit
threat of sanction. A reasonable nonlawyer would not assume that the highest court
38
In Jews for Jesus, the Court stated:
On its face, the resolution at issue in this case reaches the universe of
expressive activity, and, by prohibiting all protected expression, purports
to create a virtual “First Amendment Free Zone” at LAX. The resolution
does not merely regulate expressive activity in the Central Terminal Area
that might create problems such as congestion or the disruption of the
activities of those who use LAX. Instead, the resolution expansively states
that LAX “is not open for First Amendment activities by any individual
and/or entity,” and that “any individual and/or entity [who] seeks to
engage in First Amendment activities within the Central Terminal
Area . . . shall be deemed to be acting in contravention of the stated policy
of the Board of Airport Commissioners.” (emphasis added).
482 U.S. at 574-575, 107 S.Ct. at 2572. In, Talley, the Court noted:
22
in the state has adopted a rule which we cannot enforce.39 Indeed, the studious
citizen who investigated the matter would confront several authorities, which we
noted in our discussion on contempt, that would suggest that this Court has the
that while some nonlawyer participants may challenge the plain language of the
rule and the authority of this Court, most will simply choose to suppress speech in
order to avoid any potential penalty. The record confirms this. As we discuss
further below, at the hearing before the commissioner the Chief Disciplinary
Counsel, Mr. Plattsmier, stated that the vast majority of nonlawyer participants
obey the confidentiality rule. In our First Amendment analysis, we cannot ignore
these effects. Cf. Dombrowski v. Pfister, 380 U.S. 479, 486, 85 S.Ct. 1116, 1121,
14 L.Ed.2d 22 (1965) (“For ‘(t)he threat of sanctions may deter *** [speech]
v. Button, 371 U.S. 415, 433, 83 S.Ct. 328, 338, 9 L.Ed.2d 405 (1963)).
Finally, our review of the jurisprudence of the Supreme Court indicates that
a violation of the First Amendment may be found when the record demonstrates
speech. See FEC v. Massachusetts Citizens for Life, Inc., 479 U.S. 238, 255, 107
S.Ct. 616, 626, 93 L.Ed.2d 539 (1986) (plurality opinion) (“The fact that the
Keene, 481 U.S. 465, 488-489, 107 S.Ct. 1862, 1875, 95 L.Ed.2d 415 (1987)
39
In our society, it is well known that “‘[i]t is emphatically the province and duty of the
judicial department to say what the law is.’” Bourgeois v. A.P. Green Indus., Inc., 00-
1528 (La. 4/3/01), 783 So.2d 1251, 1260 (quoting Marbury v. Madison, 1 Cranch 137,
177, 5 U.S. 137, 2 L.Ed. 60, 73 (1803)).
23
40
(Blackmun, J., dissenting) (same). A review of the transcript of the hearing
before the commissioner leads us to the conclusion that the practical effect of the
well as lawyers.
As we have noted, see supra note 32, in accordance with a plain reading of
the confidentiality rule, the ODC has adopted several procedures in order to
mandated by the rule. These procedures invoke the authority of this Court and
make full use of the forceful language of the rule to ensure confidentiality is
the hearing before the commissioner. We note that it is the routine policy of the
ODC to advise all participants, including nonlawyers, both orally and in writing,
that they are bound by the confidentiality rule. Moreover, on the standard
complaint form used by the disciplinary agency, just above where the complainant
41
is to affix their signature, the following language is bolded for added effect:
40
See also Members of the City Council of the City of Los Angeles v. Taxpayers for
Vincent, et al., 466 U.S. 789, 798, 104 S.Ct. 2118, 2125, 80 L.Ed.2d 772 (1984) (noting
that because “the very existence of some broadly written statutes may have ... a deterrent
effect on free expression” the Court has developed the overbreadth doctrine) (citation
omitted); Ashcroft v. ACLU, 542 U.S. 656, 666, 124 S.Ct. 2783, 2791, 159 L.Ed.2d 690
(2004) (noting that the purpose of the least restrictive alternative test is to ensure that
legitimate speech “is not chilled or punished”) (emphasis added); Laird v. Tatum, 408
U.S. 1, 11, 92 S.Ct. 2318, 2324, 33 L.Ed. 2d 154 (1972) (noting that the Court has found
“in a number of cases that constitutional violations may arise from the deterrent, or
‘chilling,’ effect of governmental regulations...”) (citations omitted).
41
The testimony at the hearing before the commissioner revealed that over eighty percent
of all complaints are received from nonlawyers. Furthermore, the majority of complaints
are submitted by current or former clients against their current or former attorney.
24
yourselves so as to maintain the confidentiality mandated by the Rule
...
After reading this language into the record, Mr. Plattsmier was asked, “[s]o
[W]e tell [nonlawyer and lawyer complainants] that this is what the
Supreme Court Rule is, and they are expected as participants in the
process to maintain the confidentiality that’s mandated by the Rule.
****
In the quote above, and several other times throughout the hearing Mr. Plattsmier
confirmed that almost all lawyer and nonlawyer participants respond to the
particular, we note the following interchange between counsel for the ODC and the
[Counsel for the ODC]: Has there been – has the confidentiality been
most usually followed and subscribed to by the laypersons in the
[discipline] system?
[Counsel for the ODC]: Have there been isolated instances, frequent
instances, occasional instances, no instances at all where there have
been, perhaps, some, sort of, a problem with confidentiality?
Both Mr. Plattsmier and Mr. Shea offered testimony as to the procedures
42
Mr. Plattsmier stated that neither lawyer or nonlawyer complainants are threatened or
coerced by the disciplinary agency, the ODC simply “tell[s] them . . . what the Supreme
Court Rule is, and [that] they are expected . . . to maintain the confidentiality that’s
mandated by the Rule.” Though it may be unintentional, we recognize that some form of
subtle coercion is at work in the current system.
25
According to their testimony, the ODC reacts by sending letters and/or by
Mr. Shea testified that he remembered instances during his term of service
confidentiality rule. In response to these actions, Mr. Shea stated that he could
recall agency personnel, “actually running and saying you're to maintain the
confidentiality of this proceeding . . . ” He also stated that letters were at times sent
out to nonlawyers who had reportedly breached the confidentiality rule. According
to Mr. Shea, the letters notified the recipient that the Board had received reports
that they may have breached confidentiality, emphasized that the proceedings were
confidential, and then asked the individual to cease the suspect communications.44
frustrated with the attorney disciplinary process and have threatened to go to the
press. He can recall calling these nonlawyers, informing them of their rights to
appeal within the disciplinary system, and then emphasizing the nonlawyer's
obligation under our rule to maintain the confidentiality of the proceedings. Mr.
Plattsmier stated, “I can point them to confidentiality and say, ‘[t]he Rule requires
you to participate in this process [and] that [you are] mandated to maintain the
confidentiality . . . ’” Counsel for Mr. Warner and Mr. Rando both asked Mr.
Plattsmier if, during these phone conversations, he had ever informed nonlawyers
43
It should be noted that the only evidence in the record of potential in-person visits by
the ODC staff is Mr. Shea’s statement that he can remember agency personnel, “actually
running and saying you're to maintain the confidentiality of this proceeding . . . ” By
contrast, at the hearing before the commissioner there were several questions asked and
answered regarding the phone calls placed to nonlawyers who threatened to breach
confidentiality.
44
Mr. Plattsmier confirmed that letters are sent to nonlawyers who are reportedly in
breach of the confidentiality mandated by Rule XIX, § 16(A) and (I).
26
that they are not subject to sanction if they choose to violate the confidentiality
rule. Mr. Plattsmier replied that he did not reveal this information to the
nonlawyers.
In sum, the record demonstrates that the practical impact of the rule and the
and nonlawyer participants.45 Mr. Plattsmier stated that in the few isolated
the employment of one of the procedures noted above has usually secured the
continued silence of the nonlawyer. This practical impact cannot be ignored in our
constitutional analysis.
Our observations on this point are not designed to repudiate or disparage the
disciplinary authorities. As the witnesses for the ODC rightly noted at the hearing
before the commissioner, on its face the confidentiality rule applies to both lawyers
and nonlawyers. The rule is designed not simply to encourage, but to require the
fulfill its duty to enforce the plain meaning of the provision. We recognize that the
de facto enforcement measures discussed above simply emphasize the text of the
confidentiality rule itself. It is the rule, not the disciplinary agency, which is at the
root of the aforementioned procedures. It is the rule, cloaked in the authority of this
Court, which leads the nonlawyer to comply with the ODC's commands and
45
In fact, we note that the effectiveness of the entire confidentiality regime relies heavily
upon this practical impact, this silencing of the nonlawyer participants. Mr. Plattsmier
testified that over eighty percent of all complainants are nonlawyers. If these nonlawyers
did not abide by the confidentiality rule, the effect of the rule would be greatly
diminished.
27
For the foregoing reasons, as we proceed in our constitutional analysis, we
must consider the confidentiality rule's impact on the speech of both nonlawyer
The confidentiality rule created by La. S.Ct. Rule XIX, § 16(A) and (I)
to any aspect of their “involvement with the disciplinary process,” but they are free
provided that all “records and proceedings” of the attorney discipline system shall
be confidential).
For example, the typical complainant is barred from revealing the following
information:
Id., at 143. However, the typical complainant would not be barred from speaking
we cannot allow this perception to influence our First Amendment analysis. As the
perception that the regulation in question is not a major one because the speech is
not very important. The history of the law of free expression is one of vindication
in cases involving speech that many citizens may find shabby, offensive, or even
ugly.” United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 826,
28
120 S.Ct. 1878, 1893, 146 L.Ed.2d 865 (2000). The First Amendment protects,
“[a]ll ideas having even the slightest redeeming social importance.” Roth v. United
States, 354 U.S. 476, 484, 77 S.Ct. 1304, 1309, 1 L.Ed.2d 1498 (1957).
Moreover, we note that the New Hampshire Supreme Court found that a rule
performance of its duties.” Petition of Brooks, 678 A.2d at 143 (citing several
was permanently barred from doing so because disclosure of the mere fact that an
investigation took place, as well as the specific actions of the committee, would
violate the confidentiality of the proceeding.46 Id. These observations also hold true
Under La. S.Ct. Rule XIX, § 16(A) and (I), a participant in the attorney
until the “filing and service of formal charges.” Since the majority of disciplinary
complaints are reviewed and addressed without the filing of formal charges, the
46
The confidentiality rule analyzed in the Petition of Brooks case generally required that
participants maintain the confidentiality of the attorney disciplinary proceedings unless
or until formal charges were initiated. 678 A.2d at 142-143. Thus, as is the case under our
rules, if a disciplinary complaint was dismissed or addressed using private discipline,
participants were required to maintain the confidentiality of the proceedings for all time.
Id.
29
The record shows that the majority of disciplinary complaints are either
complaints are filed with the ODC annually. Mr. Plattsmier testified that the ODC
dismisses a substantial percentage of these complaints, finding either that they fail
enough evidence to support a good faith prosecution, or that the complaint has
“little or no merit.” Mr. Shea stated that a significant number of the complaints that
are not dismissed are addressed using private discipline, such as a private
Rule XIX, § 10(A)(5) and (A)(9). The ODC is authorized to pursue private
discipline when the disciplinary agency finds evidence of minor misconduct with
“little or no injury to a client, the public, the legal system, or the profession.” Rule
XIX, § 10(A)(5); See also Rule XIX, § 10(A)(9). When a complaint is dismissed or
private discipline is imposed formal charges are never filed, and thus the
proceedings in perpetuity.
the hearing before the commissioner suggests that such a waiver rarely occurs.47
The reason for the rare exercise of this right is obvious. Given the typical situation,
47
Mr. Shea testified at the hearing before the commissioner that he cannot remember a
respondent ever taking advantage of this particular exception. Mr. Plattsmier, however,
indicated that a limited number of respondent attorneys have exercised their right to
waive the confidentiality of the attorney disciplinary proceedings.
30
(6) La. S.Ct. Rule XIX, § 16 (A) and (I) Effectively Suppresses a Substantial
Amount of Speech
In sum, it is clear that the confidentiality rule created by La. S.Ct. Rule XIX,
§ 16 (A) and (I) effectively suppresses a substantial amount of speech.48 While the
practical temporal limit on the speech ban, coupled with the sheer number of
regulation effects a significant amount of speech. The rule does not simply
a complaint. On its face, the rule directs that participants in the thousands of
disciplinary matters that are annually either dismissed or addressed using private
discipline must maintain the confidentiality of those proceedings for all time.
According to Mr. Plattsmier’s testimony, both lawyers and nonlawyers obey the
confidentiality rule.49 Moreover, while the suppression of most any truthful speech
48
The substantial suppression of speech plainly required and effected by the
confidentiality rule evokes the concerns which have given rise to the Supreme Court’s
overbreadth doctrine. See generally Board of Airport Com'rs of City of Los Angeles v.
Jews for Jesus, Inc., 482 U.S. 569, 574-577, 107 S.Ct. 2568, 2572-2573, 96 L.Ed.2d
500 (1987); Members of the City Council of the City of Los Angeles v. Taxpayers for
Vincent, et al., 466 U.S. 789, 798-801,104 S.Ct. 2118, 2125-2127, 80 L.Ed.2d 772
(1984); Broadrick v. Oklahoma, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973).
However, the parties have not specifically argued that this doctrine applies. More
importantly, the posture we have assumed in regards to the constitutional question
renders further consideration of the overbreadth doctrine moot. From the moment we
agreed to consider the constitutionality of the confidentiality rule, we endeavored to
develop a record and assess the constitutionality of the rule based on its full scope and
application. See In Re: Ivan David Warner and Steven Joseph Rando, 05-1303 (La.
4/20/2006), La. S.Ct. Order (appointing retired Judge Philip Ciaccio as a commissioner to
“take evidence and to develop a record concerning the issue of the constitutionality of
Supreme Court Rule XIX, § 16” without limitations). A significant portion of the record,
including the briefs, the oral arguments, and particularly the transcript of the hearing
before the commissioner, reflect this broad focus. Accordingly, our analysis was not
limited to the facts of the instant matter. We have tendered findings and conclusions
based on the full scope and application of the confidentiality rule.
49
Mr. Plattsmier clearly stated that participants are informed that they are required to
maintain the confidentiality of the attorney disciplinary proceedings until the filing and
service of formal charges. He also testified that both lawyers and nonlawyers generally
obey the confidentiality provisions. However, it should be noted that the record does not
clearly indicate the extent to which the ODC has monitored or enforced the continuing
obligation of participants to maintain confidentiality in cases where the complaint is
31
is suspect under the First Amendment, the rule at issue sometimes impairs speech
Now that we have completed our analysis of the history, scope, and
application of the confidentiality rule, we must now determine whether the rule is
constitutional.
The Supreme Court has indicated that in order to determine whether the
43, 59, 114 S.Ct. 2038, 2047, 129 L.Ed.2d 36 (1994) (O’Connor, J., concurring)
(citing seven diverse free speech cases Justice O’Connor wrote, “[t]he normal
inquiry that our doctrine dictates is, first, to determine whether a regulation is
content based or content neutral, and then, based on the answer to that question, to
apply the proper level of scrutiny”). The distinction between content-based and
content-neutral laws plays a crucial role because the Supreme Court employs
Thus, we will review the principles the Supreme Court has established regarding
A. Content-Neutral Laws
Drawing on prior decisions, the Supreme Court in Boos v. Barry stated that
content-neutral speech restrictions are “those that are justified without reference to
the content of the regulated speech.” 485 U.S. 312, 320, 108 S.Ct. 1157, 1163, 99
L.Ed.2d 333 (1988) (plurality opinion) (quotations and citations omitted); See also
Playboy Entertainment Group, 529 U.S. at 811, 120 S.Ct. at 1885. The Court has
32
also held that, as a general rule, “laws that confer benefits or impose burdens on
speech without reference to the ideas or views expressed are in most instances
content neutral.” Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 643,
114 S.Ct. 2445, 2459, 129 L.Ed.2d 497 (1994). Content-neutral laws are aimed at
Constitutional Law § 12-2, 790-792 (2d ed. 1988). They are allowed to stand in
Public Service Comm'n, 447 U.S. 530, 536, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319
areas a government entity may adopt a rule that limits sound levels at a concert
arena,50 bars sound trucks from broadcasting in a loud and raucous manner on the
intermediate level of scrutiny.” Turner Broadcasting, 512 U.S. at 642, 114 S.Ct. at
2459. The Court has phrased its First Amendment intermediate scrutiny test in two
slightly different ways. John E. Nowak & Ronald D. Rotunda, Constitutional Law
§ 16.47, 1320 (7th ed. 2004). First, the Court has enunciated the general principle
50
Ward v. Rock Against Racism, 491 U.S. 781, 803, 109 S.Ct. 2746, 2760, 105 L.
Ed.2d 661 (1989).
51
Kovacs v. Cooper, 336 U.S. 77, 87-89, 69 S.Ct. 448, 453-454, 93 L.Ed. 513
(1949).
52
Nationalist Movement v. City of Cumming, 92 F.3d 1135, 1139-1140 (11th Cir.
1996).
33
is essential to the furtherance of that interest.” United States v. O’Brien, 391 U.S.
367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968); See also Turner
Broadcasting, 512 U.S. at 662, 114 S.Ct. at 2469. “The second method of analysis
Nowak, supra at 1320. The Court will uphold a reasonable restriction on the time,
place, and manner of speech if the government can show: (1) that the restriction is
justified without reference to the content of the regulated speech; (2) that it is
narrowly tailored to serve a significant governmental interest; and (3) that the
information. See Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct.
2746, 2753-2754, 105 L.Ed.2d 661 (1989) (citing Clark v. Community for
Creative Non-Violence, 468 U.S. 288, 293, 104 S.Ct. 3065, 3069, 82 L.Ed.2d 221
(1984)).
B. Content-Based Laws
stated that, “[a]s a general rule, laws that by their terms distinguish favored speech
from disfavored speech on the basis of the ideas or views expressed are content
based.” Turner Broadcasting, 512 U.S. at 643, 114 S.Ct. at 2459. 53 Content-based
53
In Turner Broadcasting, the Court acknowledged that it had previously stated that the
“‘principal inquiry in determining content neutrality . . . is whether the government has
adopted a regulation of speech because of [agreement or] disagreement with the message
it conveys.’” 512 U.S. at 642, 114 S.Ct. at 2459 (citation omitted). However, the Court
then proceeded to clarify this policy stating:
Id., 512 U.S. at 642-643 (internal quotations and citations omitted). In concluding this
discussion, the Court enunciated the “general rule” cited above: “laws that by their terms
distinguish favored speech from disfavored speech on the basis of the ideas or views
expressed are content based.” Id., 512 U.S. at 643. See also Simon & Schuster, Inc. v.
Members of N.Y. State Crime Victims Bd., 502 U.S. 105, 117, 112 S.Ct. 501, 509, 116
34
laws include both regulations that target speech based on the viewpoints expressed
and regulations that target speech on the basis of subject matter or topic. As the
447 U.S. at 537, 100 S.Ct. at 2333 (internal quotations omitted and citation
omitted); See also Burson v. Freeman, 504 U.S. 191, 197, 112 S.Ct. 1846, 1850,
119 L.Ed.2d 5 (1992) (plurality opinion); Accord Police Dept. of the City of
Chicago v. Mosley, 408 U.S. 92, 95, 92 S.Ct. 2286, 2290, 33 L.Ed.2d 212
(1972).54
restrictions. We have selected three of these cases to illustrate the application of the
and the display or distribution of campaign materials within 100 feet of a polling
place entrance. 504 U.S. at 193-194. The Court held the statute was a content-
based restriction because the law applied only to speech related to a specific
L.Ed.2d 476 (1991) (“[i]llicit legislative intent is not the sine qua non of a violation of
the First Amendment . . . [plaintiffs] need adduce no evidence of an improper censorial
motive”) (quotations and citations omitted); Carey v. Brown, 447 U.S. 455, 464-465, 100
S.Ct. 2286, 2292, 65 L.Ed.2d 263 (1980) (“even the most legitimate goal may not be
advanced in a constitutionally impermissible manner”).
54
During oral arguments, counsel for the ODC asserted that, “content based speech is a
rule which restricts a particular viewpoint.” Similarly, during the hearing before the
commissioner, the ODC argued that the confidentiality rule is content neutral because, “it
doesn’t matter whether your opinion is pro that the lawyers should be disciplined or that
they should not be disciplined.” These statements do not accurately reflect the governing
law. As we explain above, content-based restrictions of speech include both regulations
that target speech based on viewpoint and regulations that target speech based on its
general subject matter. See also Baugh v. Judicial Inquiry and Review Commission, 907
F.2d 440, 444 (4th Cir. 1990) (“viewpoint-neutrality is not equivalent to
content-neutrality and the difference between the two concepts is critical in a first
amendment analysis”).
35
subject matter, it only applied to speech regarding political campaigns. Id., 504
public policy’” but allowed bill inserts which addressed topics that were “not
‘controversial issues of public policy.’” Id., 447 U.S. at 533. The specific bill insert
which triggered the suit advocated for the use of nuclear power. Id., 447 U.S. at
532. The commission argued its policy was constitutional because it applied to all
bill inserts discussing nuclear power, whether pro or con. Id., 447 U.S. at 537. The
Supreme Court held the policy was a content-based regulation which discriminated
between categories of speech on the basis of subject matter. Id., 447 U.S. at 537-
541. Finally, in Simon & Schuster, the Supreme Court reviewed New York's “Son
of Sam” law. 502 U.S. at 107-111. This law required that any money owed under
his or her crime be deposited into an escrow account. Id. These funds were then
made available to victims of the crime who brought civil actions and secured
money judgments against the accused or convicted criminal. Id. The Court held the
[The “Son of Sam” law] singles out income derived from expressive
activity for a burden the State places on no other income, and it is
directed only at works with a specified content *** the statute plainly
imposes a financial disincentive only on speech of a particular
content.
City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 2542, 120 L.Ed.2d 305
36
(1992). Except for a few well-defined exceptions, which do not apply in this case,55
the well-established two-part strict scrutiny test. Under strict scrutiny the
showing (1) that the regulation serves a compelling governmental interest, and (2)
that the regulation is narrowly tailored to serve that compelling interest. Playboy
Entertainment Group, 529 U.S. at 813, 120 S.Ct. at 1886 ; R.A.V., 505 U.S. at
395-396, 112 S.Ct. at 2549-2550; Simon & Schuster, 502 U.S. at 118, 112 S.Ct. at
509; Consolidated Edison, 447 U.S. at 540, 100 S.Ct. at 2335 (the government
exceptions to the general rules for content-based regulations. 505 U.S. at 382-384,
112 S.Ct. at 2542-2543. The Court explained that our society has long recognized
that obscenity, defamation, and fighting words constitute proscribable speech. This
speech is of only “slight social value as a step to truth.” Id., 505 U.S. at 383
(quotations and citation omitted). Thus, these categories of expression receive far
less First Amendment protection. Id., 505 U.S. at 383-396. The parties have not
argued, and we do not find, that the confidentiality rule is governed by any of these
The ODC argues, however, that the Supreme Court’s decision in Seattle
Times Co. v. Rhinehart establishes another exception to the general rules for
content-based regulations of speech and should lead this Court to assess the
55
These exceptions are addressed in the following section.
37
constitutionality of the confidentiality rule under an intermediate level of scrutiny.
467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984).56 Accordingly, we will briefly
protective order issued by a trial court, on a showing of good cause, which barred
the defendant in the civil suit from publicly divulging a segment57 of the
information obtained through the pretrial discovery process. Id., 467 U.S. at 24-27.
The protective order in question was issued in accordance with a rule of civil
procedure which was virtually identical to its counterpart in the federal rules and to
similar rules in many states. Id., 467 U.S. at 30 n. 14; 467 U.S. at 26 n. 7; 467 U.S.
constitutional scrutiny which would apply to orders issued under these rules. Id.,
467 U.S. at 32-34; 467 U.S. at 36. We note the protective order in question clearly
targeted speech based on its content. Not surprisingly, petitioners argued that the
protective order should be subject to strict scrutiny. Id., 467 U.S. at 30-31.
However, the Court rejected this standard, stating “the rule urged by petitioners
56
Specifically, the ODC asserts that the information suppressed by the confidentiality
rule is similar to information obtained via pretrial civil discovery, the class of
information which was at issue in Rhinehart. Assuming that the ODC is correct in
observing that some information suppressed by the confidentiality rule is similar in
nature to the information at issue in Rhinehart, we must also acknowledge that some of
the information suppressed under our rule is quite different. Under the confidentiality
rule participants are not only bound from disseminating documents or information that
they receive in furtherance of the investigation of a complaint. Participants in an attorney
disciplinary matter are prohibited from divulging any information related to the
disciplinary proceedings. As we have explained, this includes the fact that a complaint
has been filed, the handling of the complaint, and, in many cases, the final disposition of
the complaint. The parties bound by the protective order in Rhinehart faced no such
limitation. They remained free to discuss the charges filed and the progress of the case
generally, and they retained the right to comment on the final decision rendered in the
matter. Rhinehart, 467 U.S. at 27 n. 8.
57
The protective order at issue in Rhinehart only barred the defendants in that case from
divulging the segment of total discoverable material that posed the greatest threat to the
rights of the members of a particular religious group implicated in the matter.
Specifically, the information involved threatened these individuals’ rights to privacy,
freedom of religion, and freedom of association . 467 U.S. at 38 (Brennan, J.,
concurring).
38
would impose an unwarranted restriction on the duty and discretion of a trial court
to oversee the discovery process.” Id., 467 U.S. at 31. Instead, the Court held that
the protective order at issue in Rhinehart, and by logical extension all those like it,
would be subjected to a form of intermediate scrutiny.58 Id., 467 U.S. at 32. The
Court justified the decision to apply lesser scrutiny on two grounds: (1) the nature
of the information suppressed, and (2) the unique role the trial court plays in
managing discovery.59 Id., 467 U.S. at 32-36. Addressing both of these points, the
Id., 467 U.S. at 32 (citations omitted). As to the unique role of the trial court, the
Court further stated:
The trial court is in the best position to weigh fairly the competing
needs and interests of parties affected by discovery. The unique
character of the discovery process requires that the trial court have
substantial latitude to fashion protective orders.
58
Specifically the Court described the appropriate level of scrutiny as follows:
Rhinehart, 467 U.S. at 32 (internal quotations omitted and citations omitted). Under this
standard, the Court affirmed the protective order, holding:
39
Id., 467 U.S. at 36. The Supreme Court’s holding in Rhinehart does not govern the
question presently before this Court. We are not presented here with a limited
considering all of the issues and competing interest in a particular case. We herein
all attorney disciplinary proceedings from divulging any information regarding the
confidentiality rule suppresses a broader class of speech than the protective order at
issue in Rhinehart, see supra note 56. In other words, it is quite plain that the two
key elements in Rhinehart which jointly triggered a lower degree of scrutiny are
not present in this case: the considered decision of a trial court based on “good
obtained through pretrial discovery. Thus, the holding in Rhinehart does not
govern our present inquiry. Accordingly, should we find that the confidentiality
regulations will apply, and we will be required to review the confidentiality rule
the case at hand, we must conclude that the confidentiality rule created by La. S.Ct.
Rule XIX, § 16(A) and (I) is a content-based regulation of speech subject to strict
speech.” Doe v. Doe, 127 S.W.3d at 732; See Playboy Entertainment Group, 529
U.S. at 811, 120 S.Ct. at 1885 (“[t]he speech in question is defined by its content”).
Whether an individual may exercise their free speech rights under the
40
confidentiality rule “depends entirely on whether their speech is related to” a
particular subject matter, i.e., the attorney disciplinary proceedings. Burson, 504
U.S. at 197, 112 S.Ct. at 1850. This regulation prohibits “public discussion of an
entire topic.” Id.; Consolidated Edison, 447 U.S. at 537, 100 S.Ct. at 2333.
dwellings by limiting the decibel level of a concert or restricting the audio output
byproduct of the government’s effort to regulate some evil unconnected with the
content of the affected speech.” Lind v. Grimmer, 859 F.Supp. 1317, 1323 n.4
(D.Haw. 1993) (summarizing and citing Ward, 491 U.S. at 797-801, 109 S.Ct. at
2757-2759). In fact, in an attempt to justify this regulation, the ODC has asserted
several interests explicitly based on the effects of the content of the abridged
that the confidentiality provisions are not “justified without reference to the content
of the regulated speech.” Playboy Entertainment Group, 529 U.S. at 811, 120
S.Ct. at 1885 (quotations and citations omitted); Boos, 485 U.S. at 320, 108 S.Ct.
speech subject to strict scrutiny is in accord with the findings of the four courts that
is also in agreement with the decisions of several federal courts which have
See Doe v. Sup. Ct., 734 F.Supp. at 984-988; Petition of Brooks, 678 A.2d at 143-144;
60
R.M. v. Sup. Ct., 883 A.2d at 377; Doe v. Doe, 127 S.W.3d at 732.
41
considered constitutional challenges to confidentiality rules applied in the context
A. Generally
speech, binding Supreme Court precedent requires this Court to subject the rule to
the “most exacting” constitutional scrutiny. Boos, 485 U.S. at 321-322, 108 S.Ct.
at 1164.
established two-part strict scrutiny test. This test requires the state to prove: (1) that
the regulation serves a compelling governmental interest,62 and (2) that the
61
See Lind v. Grimmer, 859 F.Supp. 1317, 1333 (D. Haw. 1993) and Lind v. Grimmer,
30 F.3d 1115, 1117-1118 (9th Cir. 1994) (reviewing a Hawaiian statute which generally
required that proceedings before the Campaign Spending Commission remain
confidential unless or until there was a finding of probable cause); Kamasinski v.
Judicial Review Council, 797 F.Supp. 1083, 1090 (D.Conn. 1992) and Kamasinski v.
Judicial Review Council, 44 F.3d 106, 109 (2nd Cir. 1994) (reviewing a Connecticut
statute which generally required that proceedings before the Judicial Review Council
remain confidential unless or until there was a finding of probable cause); Baugh v.
Judicial Inquiry and Review Comm'n, 907 F.2d 440, 444-445 (4th Cir. 1990) (reviewing
a statute which generally required that the proceedings of the Judicial Inquiry and
Review Commission be kept confidential unless or until the record of any particular
proceeding was filed with the Virginia Supreme Court); Providence Journal Co. v.
Newton, 723 F.Supp. 846, 854-856 (D.R.I. 1989) (reviewing a statute which generally
required that proceedings before the Rhode Island Ethics Commission be kept
confidential unless or until a final decision was rendered by an adjudicative panel
following a finding of probable cause and a hearing).
62
In Boos, the Court, citing several cases, stated “. . . we have required the State to show
that the ‘regulation is necessary to serve a compelling state interest and that it is narrowly
drawn to achieve that end.’” (emphasis added) 485 U.S. at 321-322, 108 S.Ct. at 1164
(citations omitted). This does not add a new element to the strict scrutiny analysis. As we
explain in the following section, the requirement that a regulation must be necessary to
serve the state interest is already included in the narrowly tailored analysis.
63
At the hearing before the commissioner and in briefs submitted to this Court the ODC
has argued that the confidentiality rule is narrowly tailored because, in their opinion, the
rule can only be enforced against a small percentage of the state’s population, namely the
state’s lawyers. This argument is rooted in a misunderstanding of the pertinent standards.
A regulation is not narrowly tailored simply because it applies to or is enforceable
against only a small percentage of the population. Under strict scrutiny, the ODC must
42
Party of Minn. v. White, 536 U.S. 765, 774-775, 122 S.Ct. 2528, 2534, 153
L.Ed.2d 694 (2002); Playboy Entertainment Group, 529 U.S. at 813, 120 S.Ct. at
1886; Burson, 504 U.S. at 198, 112 S.Ct. at 1851; R.A.V., 505 U.S. at 395-396,
112 S.Ct. at 2549-2550; Simon & Schuster, 502 U.S. at 118, 112 S.Ct. at 509;
Boos, 485 U.S. at 321-322, 108 S.Ct. at 1164; Consolidated Edison, 447 U.S. at
540, 100 S.Ct. at 2335 (the government must show that the regulation is a
We must approach the strict scrutiny analysis “with the posture the Supreme
Court has long prescribed for this inquiry: ‘it is the rare case in which ... a law
survives strict scrutiny.’” Republican Party of Minn. v. White, 416 F.3d 738, 763
n.14 (8th Cir. 2005) (quoting Burson, 504 U.S. at 211, 112 S.Ct. at 1857); See also
Playboy Entertainment Group, 529 U.S. at 818, 120 S.Ct. at 1889 (“It is rare that
law subject to strict scrutiny because it regulates speech based on its content is
presumptively invalid, “and the Government bears the burden to rebut that
We will first review the standards governing each prong of the strict scrutiny
analysis, and then we will proceed to subject the confidentiality rule to strict
scrutiny.
The first prong of the strict scrutiny analysis requires the identification of a
prove that the confidentiality rule is narrowly tailored or precisely drawn to serve a
particular compelling interest. See Boos, 485 U.S. at 321, 108 S.Ct. at 1164 (to withstand
strict scrutiny the state must demonstrate the regulation is “necessary to serve a
compelling state interest and that it is narrowly drawn to achieve that end”) (emphasis
added) (internal quotations and citations omitted); See also White, 536 U.S. at 775, 122
S.Ct. at 2535 (“Clarity on this point is essential before we can decide whether
impartiality is indeed a compelling state interest, and, if so, whether the announce clause
is narrowly tailored to achieve it.”) (emphasis added).
43
The state’s role in this inquiry is to assert an interest served by the regulation at
issue and to submit evidence to establish the compelling nature of that interest. The
court must then determine whether the record effectively demonstrates that the
such as the need to address a perceived problem, protect a group from harm, or
cure some ill in society. However, “[m]ere speculation of harm does not constitute
a compelling state interest.” Consolidated Edison, 447 U.S. at 543, 100 S.Ct. at
2336. The state must effectively demonstrate “that the harms it recites are real and
that its restriction [of speech] will in fact alleviate them to a material degree”
Playboy Entertainment Group, 529 U.S. at 817, 120 S.Ct. at 1888 (quoting
Edenfield v. Fane, 507 U.S. 761, 770-771, 113 S.Ct. 1792, 1800, 123 L.Ed.2d 543
scrutiny ... will vary up or down with the novelty and plausibility of the
justification raised.” Nixon v. Shrink Missouri Government PAC, 528 U.S. 377,
Once the state has asserted its interest and presented its evidence, the court
easily defined.” White, 416 F.3rd at 749; See also Illinois State Bd. of Elections v.
Socialist Workers Party, 440 U.S. 173, 188-189, 99 S.Ct. 983, 992, 59 L.Ed.2d
230 (1979) (Blackmun, J., concurring) (“I have never been able fully to appreciate
just what a ‘compelling state interest’ is.”); Eu v. San Francisco Cty. Democratic
Cent. Comm., 489 U.S. 214, 234, 109 S.Ct. 1013, 1026, 103 L.Ed.2d 271 (1989)
44
its plain implications, is there any guide for determining what is a ‘legitimate’ state
Aetna Cas. & Sur. Co., 406 U.S. 164, 181, 92 S.Ct. 1400, 1410, 31 L.Ed2d 768
(1972) (Rehnquist, J., dissenting)). “[W]hile decisions of the Supreme Court and
define the term have inevitably used equally vague, superlative terminology.
governmental interests has become largely intuitive, a kind of ‘know it when I see
supra at 937. Thus, unless the Supreme Court has provided some guidance through
interest” with the other standards utilized by the Court during constitutional
intermediate scrutiny, which is greater than the “legitimate” interest required under
a rational basis review. See generally John E. Nowak & Ronald D. Rotunda,
Constitutional Law §14.3, 687-690 (7th ed. 2004).64 Though each of these
64
See Laurence H. Tribe, American Constitutional Law § 16-32, 1602 (2d ed. 1988)
(under intermediate scrutiny the court insists that the objectives served by a regulation be
“‘important’ even if they need not be as ‘compelling' as strict scrutiny would demand”);
Shapiro v. Thompson, 394 U.S. 618, 638, 89 S.Ct. 1322, 1333, 22 L.Ed.2d 600 (1969)
(affirming the fact that the compelling interest standard is more stringent than rational
basis review) (overruled on other grounds by Edelman v. Jordan, 415 U.S. 651, 670, 94
S.Ct. 1347, 1359, 39 L.Ed.2d 662 (1974) ); See also Carey v. Brown, 447 U.S. 455, 464,
100 S.Ct. 2286, 2292, 65 L.Ed.2d 263 (1980):
45
additional terms are also purposefully vague, the hierarchal scheme is somewhat
useful for our present analysis. A state actor cannot rely on legitimate or even
of the “highest order.” White, 536 U.S. at 780 (quoting The Florida Star v. B.J.F.,
491 U.S. 524, 541-542, 109 S.Ct. 2603, 2613, 105 L.Ed.2d 443 (1989) (Scalia, J.,
concurring)).
Finally, the court’s analysis under the narrowly tailored inquiry may inform
the court’s decision as to the compelling interest question. One of the factors to be
amount of speech that harms the government interest to about the same degree as
Tailoring and Transcending Strict Scrutiny, 144 U.Penn.L.Rev. 2417, 2423 (1996)
(collecting cases). If the court finds that a regulation is underinclusive, this weighs
against a finding that the rule satisfies either prong of strict scrutiny. This is
because underinclusiveness often raises serious doubts that the state is in fact
serving the significant interest which the state invokes in support of affirmance.
The Florida Star, 491 U.S. at 540, 109 S.Ct. at 2612-2613; See also City of Ladue
46
v. Gilleo, 512 U.S. 43, 52-53, 114 S.Ct. 2038, 2044, 129 L.Ed.2d 36 (1994)
may diminish the credibility of the government’s rationale for restricting speech in
the first place.”).66 We note that in several cases, a finding that a regulation was
underinclusive as to a particular interest led the Court to hold that the state could
not rely on that particular interest to justify the regulation under strict scrutiny. The
Florida Star, 491 U.S. at 540-541, 109 S.Ct. at 2612-2613; Carey v. Brown, 447
U.S. 455, 465, 100 S.Ct. 2286, 2292-2293, 65 L.Ed.2d 263 (1980). As the Court
highest order, and thus as justifying a restriction upon truthful speech, when it
leaves appreciable damage to that supposedly vital interest unprohibited.” 536 U.S.
at 780 (quoting The Florida Star, 491 U.S. at 541-542, 109 S.Ct. at 2613 (Scalia,
J., concurring)); See generally White, 416 F.3d at 750-751, 757-763 (discussing
interest under strict scrutiny, we must then analyze whether the law in question is
terms imply, this is an examination of the tightness of fit between the regulation
66
The underinclusive doctrine is best explained by example. In Carey, Illinois attempted
to justify a regulation which barred all picketing, except for picketing related to a labor
dispute, by arguing the regulation was necessary to maintain domestic tranquility. 447
U.S. at 465, 100 S.Ct. at 2292-2293. The Supreme Court found that by exempting labor
picketing from the general picketing prohibition the state had fatally impeached its
argument that the rule was necessary to avoid domestic disturbance. Id., 447 U.S. at 465
n. 9. No evidence was presented to show that labor picketing would be less disruptive of
residential privacy. Thus, the Court held the state’s asserted interest in promoting the
privacy of the home was not sufficient to save the regulation. Id., 447 U.S. at 465.
67
Because we conclude that the confidentiality rule fails to satisfy the requirements of
strict scrutiny on other grounds, we need not address whether or not the confidentiality
rule is underinclusive as to the interests asserted by the ODC. We have nonetheless
included the above discussion on the underinclusive doctrine in order to provide a
complete and accurate description of the standards governing the strict scrutiny analysis.
47
and the state interest. The purpose of the analysis “is to ensure that speech is
restricted no further than necessary to achieve the [state’s] goal . . . ” Ashcroft, 542
U.S. at 666, 124 S.Ct. at 2791. Toward this end, the Supreme Court has indicated
that courts conducting this inquiry should consider several closely related factors.
A narrowly tailored rule must actually advance the interest asserted. Eu, 489 U.S.
at 228, 109 S.Ct. at 1022-3 (finding that the state had failed to present any evidence
that proved that a ban on party primary endorsements actually served the state’s
interest in preventing fraud and corruption in the political process). Second, a rule
is not narrowly tailored unless it is reasonably necessary to serve the state interest.
White, 536 U.S. at 775, 122 S.Ct. at 2534-5 (“In order for respondents to show that
the announce clause is narrowly tailored, they must demonstrate that it does not
505 U.S. at 395-396, 112 S.Ct. at 2550 (“The dispositive question in this case,
Paul's compelling interests . . . ”); Burson, 504 U.S. at 199, 112 S.Ct. at 1852 (“ . .
. however, a State must do more than assert a compelling state interest-it must
demonstrate that its law is necessary to serve the asserted interest”).68 Third, as
damage to the supposedly vital state interest unprohibited, this weighs against a
68
One scholar has noted that three of the narrowly tailored factors: advancement of the
state interest, no overinclusiveness, and the least restrictive alternative requirement, can
be subsumed within the requirement that a regulation be necessary to serve a compelling
state interest.
If the law doesn’t actually advance the interest, then not having the law at
all would be a less restrictive but equally effective alternative. Likewise, if
the law is overinclusive, then a narrower law that exempted speech which
doesn’t implicate the interest would be less restrictive and equally
effective. When the Court says, as it sometimes does, that a law must be
‘necessary to serve a compelling state interest,’ it seems to be referring to
these three components.
48
finding that the rule is narrowly tailored to serve a compelling interest. White, 536
U.S. at 779-780, 122 S.Ct. at 2537; See also White, 416 F.3d at 750-751, 757-763
(citing several Supreme Court cases). Fourth, a narrowly tailored regulation cannot
accomplish the compelling goal. Simon & Schuster, 502 U.S. at 121, 112 S.Ct. at
511 (finding New York’s “Son of Sam” law was “significantly overinclusive”).
Finally, we note that a rule is not narrowly tailored if there are less-speech
restrictive alternatives available that would serve the compelling state interest at
least as well. Ashcroft, 542 U.S. at 665-666, 124 S.Ct. at 2791 (“ . . . the court
should ask whether the challenged regulation is the least restrictive means among
815, 120 S.Ct. at 1887 (“ . . . if a less restrictive means is available for the
Government to achieve its goals, the Government must use it.”); Sable
Communications of California, Inc. v. F.C.C., 492 U.S. 115, 126, 109 S.Ct. 2829,
2836, 106 L.Ed.2d 93 (1989) (“The Government may, however, regulate the
interest if it chooses the least restrictive means to further the articulated interest.”);
R.A.V., 505 U.S. at 395, 112 S.Ct. at 2550 (“The existence of adequate content-
751 (citing several Supreme Court holdings and noting the various elements of the
69
See also Eugene Volokh, Freedom of Speech, Permissible Tailoring and Transcending
Strict Scrutiny, 144 U. Pa. L. Rev. 2417, 2421-2424 (1996) (collecting cases and listing
the various elements of the narrowly tailored analysis).
49
V. The Strict Scrutiny Analysis
In the ODC’s supplemental brief, the agency argues that the testimony
offered by its four witnesses at the hearing before the commissioner illustrated at
least four interests served by La. S.Ct. Rule XIX, § 16(A) and (I): (1) protecting
the reputations of lawyers who have not committed an ethical violation; (2)
protecting client confidences from unnecessary public disclosure; and (4) helping
interests described above, we will first summarize the concerns the ODC has raised
under each phrase, and then we will proceed to determine whether the interest
A. Reputational Interest
lawyers who have not committed an ethical violation.” Much of the testimony
presented at the hearing regarding this interest tended to support the general
For instance, Mr. Stanley testified that a “lawyer's reputation is their stock and
trade. And when once lost, it's almost impossible to regain.” While we agree that
50
confidentiality mandated by La. S.Ct. Rule XIX, § 16(A) and (I) prohibits
confidentiality rule does not prohibit, for instance, complainants from describing in
detail the events inspiring their request for disciplinary action to anyone they wish.
Likewise, other participants can share information they have obtained independent
of the proceedings with the general public. Furthermore, the record shows that
which are rooted in the same underlying fact pattern. Participants may speak freely
about these related suits. Thus, the interest at issue is not the protection of an
reputation from the injury which might arise from the release of information
interest, Mr. Shea testified that while information regarding the substance of the
something different to the general public.” According to Mr. Shea, the filing of the
complaint insinuates there is some basis to the complaint. He stated, “You have
good lawyers who get these complaints against them, and if every one of these
things got out and became public, that would affect their standing.” Chief
detrimental affect upon not only their practice, whether guilty or innocent, but it
particular interest qualifies as compelling under strict scrutiny, a court has little
guidance unless the Supreme Court has provided some direction regarding the state
interest at issue. We find that the Supreme Court has provided guidance as to
51
reputational interests in the context of government investigations in two cases,
Landmark, 435 U.S. 829, 98 S.Ct. 1535, and Butterworth v. Smith, 494 U.S. 624,
The statute required that the commission’s proceedings remain confidential unless
or until charges were filed with the state supreme court. Id., 435 U.S. at 830 n.1.
Virginia, like the ODC in the present case, attempted to justify this suppression of
speech on the basis of reputational interests. The state asserted the confidentiality
rule protected judges from the reputational injury that would result from the
Id., 435 U.S. at 841-842, 98 S.Ct. at 1543 (internal quotations omitted and citations
omitted). While attorneys are not recognized as public officials in the same sense
as judges are, we have long held that attorneys are “officers of the courts.”
Chittenden v. State Farm Mut. Auto. Ins. Co., 00-0414 (La. 5/15/01), 788 So.2d
1140, 1148; State v. Woodville, 108 So. 309, 311 (La. 1926); Accord Petition of
Brooks, 678 A.2d at 144. Accordingly, we agree with the New Hampshire
combined with the role of attorneys as officers of the court, compels the
attorneys . . . ” Petition of Brooks, 678 A.2d at 144-145; See also Doe v. Sup.Ct.,
52
734 F.Supp. at 986 (reasoning that if the interest in maintaining the reputation of
the judiciary is insufficient to justify the suppression of speech, then the interest in
insufficient to justify the suppression of speech. 494 U.S. 624, 110 S.Ct. 1376. In
that case, the Court considered the constitutionality of a Florida statute which
generally prohibited grand jury witnesses from ever divulging the substance of
their testimony. Id., 494 U.S. at 626-627. In their analysis, the Court reviewed
Florida’s interest in ensuring that persons that were “accused but exonerated by the
grand jury will not be held up to public ridicule.” Id., 494 U.S. at 634 (quotations
and citation omitted). We note that, unlike the interest in Landmark, 435 U.S. at
840-842, this reputational interest was not limited to that of public officials; it
included the reputational interest of private citizens as well. Butterworth, 494 U.S.
at 634; See also Doe v. Doe, 127 S.W.3d at 734 (making the same observation).
The Court recognized that this interest was a “substantial” state interest.
Butterworth, 494 U.S. at 634. Yet, despite the broader scope of the reputational
interest at issue in Butterworth, the Supreme Court held that the principle
established in Landmark, 435 U.S. at 841-842, applied with equal force, stating
interests alone cannot justify the proscription of truthful speech.” Butterworth, 494
U.S. at 634, 110 S.Ct. at 1382 (citing several cases including Landmark, 435 U.S.
We note that all four courts that have completed an in-depth First
system have found that the state’s interest in protecting the reputation of attorneys
53
speech. Three of the four courts based their decision on Landmark, 435 U.S. at
841-842. Petition of Brooks, 678 A.2d at 144-145; R.M. v. Sup. Ct., 883 A.2d at
377-378; Doe v. Sup.Ct., 734 F.Supp. at 986. The Tennessee Supreme Court based
its decision on Landmark, 435 U.S. at 841-842, and Butterworth, 494 U.S. at 634.
Doe v. Doe, 127 S.W. 3d at 734 (“Applying the principles of these cases, we
We agree with the conclusions of our fellow courts. While protecting the
jurisprudence of the Supreme Court, this interest does not qualify as compelling.
Thus, this state interest fails to satisfy the requirements of the strict scrutiny
analysis.
The second potential compelling interest asserted by the ODC is the state’s
investigations.” This single phrase obviously addresses two separate interests: (1)
cooperation with investigations, the testimony offered at the hearing before the
cooperation. The testimony suggested that while some witnesses are anxious to
environment where more hesitant witnesses are comfortable cooperating with the
ODC staff. Regarding the state’s interest in encouraging the filing of complaints,
Mr. Plattsmier testified that “there are a number of folks who bring matters to our
54
enforced. They would just [as soon] not participate . . . ” He then offered, “[i]t may
In essence, the ODC claims that some witnesses are hesitant to testify and
some grievants are hesitant to file a complaint for fear of either acts of reprisal
from the respondent attorney or unwanted public attention. Thus, the only way to
ensure the participation of these witnesses and grievants is to assure them that they
can participate anonymously. The ODC asserts the confidentiality rule provides
hesitant witnesses and grievants with the anonymity required to assuage their fears
We note that each of the four courts that have completed an in-depth First
system have considered interests equivalent to those represented above. Two of the
four courts explicitly held these interests did not qualify as compelling under strict
scrutiny. R.M. v. Sup. Ct., 883 A.2d at 378-379 (finding the state’s interests in
speech); Doe v. Doe, 127 S.W.3d at 735 (same). The other two courts also held that
the confidentiality rules in question could not survive strict scrutiny on the basis of
these interests but on different grounds. Petition of Brooks, 678 A.2d at 145
(assumed arguendo that these interests were compelling but found the rule was not
narrowly tailored); Doe v. Sup.Ct., 734 F.Supp. at 985 (found the state had failed
to present any evidence to substantiate these interests and, regardless, found the
compelling to suppress speech, we find that the confidentiality rule created by La.
55
S.Ct. Rule XIX, § 16(A) and (I) still fails to survive strict scrutiny because it is not
than is necessary to accomplish this goal. In particular, we fail to see how imposing
their own accord. Cf. Butterworth, 494 U.S. at 633, 110 S.Ct. at 1382 (finding the
concern that some witnesses will be deterred from cooperating with a grand jury
witnesses from discussing their own testimony since “any witness is free not to
witnesses. Accord R.M. v. Sup. Ct., 883 A.2d at 380. Our rules authorize the ODC
S.Ct. Rule XIX, § 14; Cf. Butterworth, 494 U.S. at 634, 110 S.Ct. at 1382
the stand.”). Moreover, under Rule 8.1 of the Rules of Professional Conduct,
obligated to fully cooperate with the ODC in its investigation of any matter under
threat of discipline. Thus, there are tools that are currently available to the ODC
56
which allow the disciplinary agency to obtain the cooperation of witnesses in a
interest asserted in this section, the interest in encouraging the filing of complaints.
As with the prior interest, the confidentiality rule suppresses more speech than is
anonymity, they are free not to disclose the fact that they have filed a complaint.
likely serves to deter rather than encourage the filing of some complaints. See R.M.
v. Sup. Ct., 883 A.2d at 380 (“[N]ot all grievants desire anonymity, and indeed,
some grievants may be deterred from filing ethics complaints because they are
forbidden from publicizing that fact.”); Doe v. Sup.Ct., 734 F.Supp. at 985. (noting
“perpetual bar from speaking out” about the complaint). By suppressing the speech
of those complainants who would reject anonymity, the rule is obviously not
We also note that the confidentiality rule is simply not designed or tailored
to address the concern raised by Mr. Plattsmier, that some grievants will not file a
complaint unless their identity can be hidden from the respondent attorney.70 We
70
The comments to the source provisions for our current confidentiality rule provide
strong support for our finding on this point. Again, the confidentiality provisions at issue
in this case, La. S.Ct. Rule XIX, § 16(A) and (I), were adopted from Model Rule 16 of
the ABA’s 1989 MRLDE. See 114 No. 2 Annu. Rep. ABA 334-337 (1989). The
comments to the 1989 version of Model Rule 16 state that the confidentiality that
attaches prior to the filing of formal charges is, “primarily for the benefit of the
57
first note that La. S.Ct. Rule XIX, §16(A)(1) indicates that the respondent attorney
may waive the confidentiality of the proceeding.71 Second, in the interest of due
process, our current disciplinary rules require that before the ODC recommends a
disposition other than dismissal or stay, the respondent attorney must be notified in
heard. La. S.Ct. Rule XIX, § 11(B)(2). In many cases, the substance of the
complaint will reveal the identity of the complainant. Furthermore, in keeping with
the spirit of Rule XIX, § 11(B)(2), and to serve the practical needs of the
investigation which they are required to conduct, the ODC has adopted the
the respondent attorney. See Rule XIX, § 4(B)(1) and (2) (describing the ODC’s
duty to screen and investigate all information coming to the attention of the
disciplinary agency). The standard complaint forms used by the ODC, when
completed, include the name of the grievant, and thus the anonymity of the
grievant is lifted when the respondent attorney reviews the complaint. This state of
affairs was discussed during the hearing before the commissioner. We note the
following interchange:
[Counsel for Mr. Warner]: . . . Isn't it [the ODC’s] practice to take the
complaint, with the complainant's name on it, and just forward it
directly to the lawyer?
[Counsel for Mr. Warner]: So the lawyer, even a big, powerful lawyer,
from the very beginning of the proceedings knows who the
complainant is?
respondent, and protects against publicity predicated upon unfounded accusations.” Id. at
336. This is the reputational interest we have already addressed. The comments do not
mention the other three interests asserted herein by the ODC.
71
Indeed, in their supplemental brief the ODC states that “the confidentiality provided by
this Rule may be waived by the Respondent attorney at any time.”
58
[Mr. Plattsmier, Chief Disciplinary Counsel]: In almost every
instance, that's true . . .
***
Louisiana is not unique in this regard. Two courts have gone so far as to say that
“‘[t]he lawyer who may be the target of the complaint surely will learn about the
grievance and the identity of the complainant, whether the procedures are deemed
confidential or not.’” See R.M. v. Sup. Ct., 883 A.2d at 380 (quoting Doe v.
Finally, we note that counsel for Mr. Warner presented a witness at the
hearing before the commissioner who testified that there is a less-speech restrictive
for the agency equivalent to our ODC in Massachusetts. While in that capacity he
72
It should be noted that Mr. Plattsmier testified that when the ODC is able to
independently verify the facts contained in a complaint, in deference to the
confidentiality requirement, the agency does not forward the original complaint directly
to the respondent attorney. The agency has adopted this procedure in an attempt to reduce
complainant exposure. However, Mr. Plattsmier admits that this is a rare exception to the
general practice of the agency. While admirable, this does not remove the respondent’s
apparent ability under Rule XIX, §16(A)(1) to waive confidentiality completely.
Furthermore, if the ODC’s specific interest is in preserving their capability to utilize the
above procedures to limit complainant exposure, we must recognize that this result can
be achieved via a regulation that restricts less speech. We could simply impose
confidentiality only upon the disciplinary agency itself, rather than upon all participants
in the disciplinary process. This would allow the agency to continue to withhold the
identity of the original complainant, when practical, until confidentiality is lifted.
59
agents of the disciplinary agency.73 In contrast to our present confidentiality
regime, under the Massachusetts rule there was no gag order placed on nonagency
Massachusetts confidentiality regime had been explained, Counsel for Mr. Warner
asked Mr. Corbally, “In Massachusetts . . . did you have problems with getting
witnesses to cooperate?” Mr. Corbally replied, “No.” Counsel for Mr. Warner then
asked Mr. Corbally, “How about in getting people to file complaints?” Mr.
will be ineffective to achieve its goals.” Playboy Entertainment Group, 529 U.S.
at 816, 120 S.Ct. at 1888. “A court should not assume a plausible, less restrictive
alternative would be ineffective . . . ” Id., 529 U.S. at 824; See also Ashcroft, 542
U.S. at 665, 124 S.Ct. at 2791 (“When plaintiffs challenge a content-based speech
restriction, the burden is on the Government to prove that the proposed alternatives
will not be as effective as the challenged statute.”) (citation omitted). Counsel for
achieve the interests the ODC has asserted under this header. The ODC has failed
to present any evidence or argument to show that this less restrictive alternative
would be an ineffective method of attaining its goals. Thus, the ODC has failed to
meet its burden to prove that the present confidentiality rule created by La. S.Ct.
Rule XIX, § 16(A) and (I) is narrowly tailored to serve the interests we address
Model Rule 16 of the ABA MRLDE, as revised by the 1993 amendments discussed
herein. 118 No.2 Annu. Rep. ABA 226-227 (1993).
60
C. Protecting Client Confidences From Unnecessary Public Disclosure
The third interest asserted by the ODC is the state’s interest in “protecting
client confidences from unnecessary public disclosure.” At the root of this concern
is Rule 1.6(b) of the Rules of Professional Conduct, which states that an attorney
acknowledged that the Rules of Professional Conduct clearly allow for the
serves to minimize any potential damage to the client which might result from this
not divulge information regarding the proceedings unless or until formal charges
are filed. Since many charges are dismissed or addressed using private discipline,
and thus are perpetually considered confidential matters, the ODC argues the
suppress speech, we find that the confidentiality rule created by La. S.Ct. Rule XIX,
§ 16(A) and (I) still fails to survive strict scrutiny because it is not narrowly tailored
to promote this asserted interest. As it regards this interest, the confidentiality rule is
overinclusive. The rule not only bars disclosure of client confidences, it bars
Furthermore, Mr. Plattsmier stated that upwards of eighty percent of all the
complaints filed with the ODC are from nonlawyers. He also stated that most of the
individuals comprising this eighty percent, “are clients filing against their own
61
lawyers, so that there's [sic, there are] no confidences that are being breached,” as
communications are exchanged between the complainant, the ODC, and the
respondent attorney during the investigation of the complaint. Thus, in the majority
The fourth and final potential compelling interest asserted by the ODC is the
example “abuses” given by the witnesses testifying on behalf of the ODC at the
hearing before the commissioner were modeled after the fact pattern in the instant
matter. The witnesses noted that under Rule 8.1 of the Rules of Professional
Conduct, a lawyer is obligated to cooperate with the ODC in its investigation of any
under Rule 1.6(b) of the Rules of Professional Conduct. The record in the present
the ODC forwards the accused attorney’s response to the complaint, including any
litigation, this situation is ripe for abuse. The attorney disciplinary investigation
process may place information that would normally be protected from discovery in
product doctrine, into the hands of the opposition. The ODC argues the
then using the otherwise unobtainable information that they receive during the
62
criminal litigation. If allowed to go unchecked, the ODC asserts that this “second
created by La. S.Ct. Rule XIX, § 16(A) and (I) still fails to survive strict scrutiny
restrictive alternative which would adequately serve this interest is readily apparent.
This court could simply adopt a rule which specifically prohibits the use of
Ashcroft, 542 U.S. at 666, 124 S.Ct. at 2791 (noting that the least restrictive
alternative test does not begin with “the status quo of existing regulations,” but
rather the court should ask “whether the challenged regulation is the least restrictive
542 n. 11, 100 S.Ct. at 2336 (noting a readily apparent less-speech restrictive
VI. Conclusion
74
We note that Mr. Plattsmier testified at the hearing before the commissioner that he had
never seen a situation like the instant case before, where lawyers have taken a respondent
attorney’s reply to a bar discipline complaint and filed it into the record of an ongoing
parallel civil proceeding while the attorney disciplinary complaint was still under
investigation.
75
During the hearing before the commissioner, counsel for Mr. Warner asked Mr. Stanley
the following question:
Mr. Stanley replied, “[i]f that were the only purpose of the Rule, you would be correct.”
63
Rule XIX, §16(A) and (I) violates the First Amendment of the United States
Constitution. The confidentiality rule was promulgated by this Court, a state entity,
and directly abridges speech, thus the protections of the First Amendment apply to
the rule. The confidentiality rule is a content-based regulation, and thus its
reviewed the requirements of strict scrutiny in-depth and have carefully applied
these standards to the rule. We conclude that the confidentiality rule does not satisfy
under strict scrutiny. Furthermore, even if we were to assume arguendo that the
remaining three interests could qualify as compelling, the confidentiality rule is not
joint reading of La. S.Ct. Rule XIX, § 16(A) and (I) must fall.
attorney disciplinary proceedings under a joint reading of La. S.Ct. Rule XIX, §
16(A) and (I). We do not address the various other applications of the
Disability.”
Given our findings, the ODC's claim that Warner and Rando violated the
confidentiality imposed by La. S.Ct. Rule XIX, § 16(A) and (I), thus breaching
64
DECREE
the disciplinary board, and the commissioner, and considering the record, briefs,
and oral argument, it is ordered that the formal charges against respondents be and
65
APPENDIX